Attorneys for Rectrix Aerodrome Centers see no need for the Federal Aviation Administration to rule on the violations it alleges against Barnstable Municipal Airport and some of its officials.


In the company's latest filing, it said the questions suggested for the FAA's review and answer would not help in the case, as it's not violation of FAA law that is suggested.

The Rectrix suit, filed in July 2006, alleges, among other things, airport officers acted as an "enterprise" as defined by federal Racketeering Influenced Corrupt Organizations (RICO) statutes and used an illegal monopoly on the sale of jet fuel in violation of the Sherman antitrust act to fund municipal operations beyond the scope of FAA grant assurances.

In questioning the monopoly, Rectrix said it is not suggesting that the exclusive proprietary right held by the airport violates FAA law, but rather a violation. As such, Rectrix's attorneys argue, how the FAA rules on those claims is immaterial.

"Whether the monopoly violates the Sherman Act and whether certain contractual language permits Rectrix to sell jet fuel -- as of the law in which the FAA has no pertinent expertise, let alone power to decide -- require a fact-finder in this court to decide," the filing reads.

Rectrix makes clear the claims under federal RICO and Sherman Anti-trust statutes do not question the "proprietary exclusive right" granted to airports under FAA law.

Attorneys for Rectrix also make clear that the airport itself is not a defendant in the RICO claims, but rather the individuals operating on its behalf, and as such, any FAA ruling cannot address those claims.

The company's filing is in response to a set of four proposed questions suggested by the airport that the Federal Aviation Administration answer in advance of determining how to proceed with the case through the court system.

The case remains in the preliminary stage. Attorneys for the airport are attempting to whittle down the claims that could go to trial.

Rectrix wants all of the charges set to go forward to be heard by a jury at trial. Among the objections to sending any of the claims to the FAA for review is that Rectrix would not have an opportunity for discovery and cross-examination available to it as it would in federal court.

The judge must determine which of the charges are rightfully brought in the case and then set a schedule for discovery and further court action leading to a trial.

"Defendants' proposed questions entirely skirt the key relevant issue on Rectrix's RICO claims -- namely, whether Defendants committed predicate acts under RICO by, among other things, concealing certain Airport standards, diverting airport revenues for non-airport purposes and filing forms falsely reporting revenues."

The filing is consistent with the arguments made before Stearns in December, during which Rectrix attorney said referral to the FAA would simply delay the court proceedings.

"To refer Defendant's questions to the FAA would only waste additional time and allow Defendants to continue with their wrongful behavior to the detriment of Rectrix's business," the March 9 filing reads.

Later in the 16-page response, attorneys for Rectrix wrote, "The FAA is not a proper fact-finding body for the purposes of RICO, antitrust or Section 1983 claims, let alone contractual claims." Rectrix also said that the FAA can only rule on matters related specifically to the airport, not on those named individually as defendants.

Rectrix also casts doubt on the willingness of the FAA to act in this matter.

"...[T]he FAA has no power to award Rectrix the relief it seeks, and, as Rectrix has alleged in the complaint... the FAA already has turned a blind eye to the wrongdoing of Defendants," the complaint reads. "Accordingly, the FAA is in no way the proper body to determine any of the issues in this action, and Defendants' proposed questions to the FAA would hinder, not advance, the resolution of Rectrix's claims here."

Since the filing of the town's response on Jan. 18, the FAA issued a five-page letter detailing the result of an FAA review of the airport and town's books. The letter, which states early on that the FAA did not conduct a financial audit, said that inaccuracies were found in the airport's reporting of funds distributed to other government entities, including the town, and on the use of grant funds. Those inaccuracies, according to the letter were "easily corrected" by re-filing the forms and that there did not appear to be any misuse of funds.

Airport officials took that letter as a bill of health on the airport's financial house. Rectrix sees it differently.

"Astonishingly, Defendants ask this court to send a question to the FAA the answer to which they have effectively admitted and the FAA has already answered... in filing its November 2006 amendments to Forms 126 and 127 for 2003 through 2005, the BMAC admitted that the previous forms were false."

If the judge rules against sending any of the questions to the FAA for review, airport attorneys contend that they still have an opportunity to file for dismissal in the case. Rectrix's counsel disagrees.

There is no indication as to when the judge will rule on whether to consult the FAA.

[Read more in Friday's edition.]